Bailey, J.
Matthew Englehardt appeals his convictions and corresponding ten-year sentence for one count of sexual misconduct with a minor, as a Level four felony; and three counts of sexual misconduct with a minor, as Level 5 felonies. Englehardt raises four issues for our review, but we find only one dispositive: whether the trial court abused its discretion and, thus, subjected Englehardt to double jeopardy when it granted the State’s motion for a mistrial. We reverse.
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Englehardt challenges the court’s order granting the State’s motion for a mistrial. Specifically, Englehardt contends that there was no manifest necessity for the court to declare a mistrial and that his subsequent trial subjected him to procedural double jeopardy.
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Englehardt concedes that “the trial court undertook much effort in allowing the parties” to be heard on the issue of Johnson’s testimony. Appellant’s Br. at 21. He further concedes that Johnson “was his witness, not the State’s[.]” Id. at 22. Nonetheless, he asserts that there was no manifest necessity for a mistrial because he “did not directly [e]licit” Johnson’s response, his trial “was well underway” when Johnson testified, and Johnson’s testimony was “very vague and in no way impugn[ed] M.V.1’s character[.]” Id. And Englehardt asserts that, even if Johnson’s testimony “attack[ed] M.V.1’s character and credibility,” the “proper course of action” would have been to strike the testimony and give a limiting instruction to the jury. Id. at 23. We must agree.
The challenged testimony here is the statement by Johnson, on the third day of trial, that she usually handled bathing the children, including M.V.1, when she was in a relationship with Englehardt. In particular, she testified that she handled that task as a result of her job working for DCS, so that “nothing can ever come out that anything has happened,” and because of “concerns of M.V.1’s behavior[.]” Tr. Vol. 3 at 242. We agree with Englehardt that that testimony is “vague” and does not imply that M.V.1 is dishonest or would falsely accuse her father of inappropriate actions. Rather, the implication from that testimony is that she handled bathing the children because she was familiar with children as a result of her job with DCS.
Further, while Johnson testified in the offer of proof that M.V.1 had a history of lying, she did not provide that testimony in front of the jury. Again, the only challenged testimony that the jury heard was Johnson’s testimony that she had previously handled the baths while she was in relationship with Englehardt— when M.V.1 was between five and nine years old—because of her job, her familiarity with children, and nonspecific concerns about M.V.1. Nothing about that testimony demonstrated to the jury that M.V.1 had a character for untruthfulness. We do not see anything egregious about Johnson’s testimony, let alone anything so egregious as to warrant a finding of manifest necessity.
Indeed, the trial court seemed to acknowledge that the substance of Johnson’s testimony itself was not problematic. The court found that “[o]rdinarily a limiting instruction would likely be sufficient to cure any improper statement of the Defense witness[.]” Tr. Vol. 4 at 20. Nonetheless, the court relied almost exclusively on the fact that Johnson was a DCS case worker to support its determination that a mistrial was needed because the jury “might” place too much emphasis on her testimony or because the jury may “speculate” as to why a father could not bathe his own child. Id.
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In any event, even if Johnson’s testimony did attack M.V.1’s credibility, Indiana Evidence Rule 608(a) specifically provides that a “witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.” In addition, our Supreme Court has held that a person may testify about his or her opinion regarding another’s character for truthfulness or untruthfulness if it stems from the testifying witness’ personal knowledge of that character. See Hayko v. State, 211 N.E.3d 483, 489 (Ind. 2023). And there is no dispute that Johnson had personal knowledge of M.V.1. Thus, Johnson’s testimony was not per se prohibited. To the extent it violated the motion in limine, we see no reason why an admonishment would not have been adequate to cure any problem with Johson’s brief testimony. And a mistrial is only warranted when no other curative action can be expected to remedy the situation. Baumholser, 186 N.E.3d at 692.
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Finally, “‘[w]hen the jury is property instructed, we will presume they followed such instruction.’” Weisheit v. State, 26 N.E.3, 20 (Ind. 2015) (quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987)). We therefore agree with Englehardt that the jury would have properly followed any admonishment given by the trial court to disregard the challenged testimony and to properly consider all of the evidence presented by both parties.
In sum, Johnson’s testimony was not so egregious as to warrant the extreme remedy of a mistrial. Accordingly, we hold that the court abused its discretion when it granted the State’s motion for a mistrial. As a result, we hold that the court subjected Englehardt to procedural double jeopardy when it retried the case. We therefore reverse his convictions.
Reversed.
Crone, J., concurs with separate opinion.
Kenworthy, J., dissents with separate opinion.
Crone, J., concurring.
In attempting to justify the trial court’s declaration of a mistrial based on a vague, isolated reference to M.V.1’s “behavior” in the final stages of a three-day jury trial, the dissent claims that “several relevant facts beyond Johnson’s statement are important.” Slip op. at __ (Kenworthy, J., dissenting). I could not disagree more. The only matter of importance is Johnson’s statement itself, which is all that the jury heard. Such evidence is not inadmissible, which the dissent concedes. See id. at __ n.2 (“The trial court indicated that it did not believe the character evidence the defense wished to elicit was admissible ‘under the case law … and the Indiana Rules of Evidence.’ [] Our Supreme Court has since issued an opinion stating otherwise.”) (Kenworthy, J., dissenting). By definition, admissible evidence cannot create a manifest necessity for a mistrial. To conclude otherwise would gut the constitutional protection against double jeopardy, which “embraces the defendant’s ‘valued right to have his trial completed by a particular tribunal.’” Washington, 434 U.S. at 505 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).
Kenworthy, J., dissenting.
A criminal defendant ought not be rewarded for violating a trial court’s orders. The trial court here expressed clear disbelief of defense counsel’s evolving explanations for her presentation of Holly Johnson’s testimony. The trial court had the opportunity to observe the parties, witnesses, attorneys, and jurors as the events unfolded and, after painstaking analysis, found manifest necessity for a mistrial. For the reasons below, I would affirm the trial court on this issue and respectfully dissent.
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And finally, “a criminal trial is, even in the best of circumstances, a complicated affair to manage.” United States v. Jorn, 400 U.S. 470, 479–80 (1971). We give the trial court great deference because it is in “the best position to gauge the circumstances and probable impact on the jury.” Wright v. State, 593 N.E.2d 1192, 1196 (Ind. 1992), cert denied. Thus, trial judges should be given latitude to deal with bad conduct in the manner they see fit or they will become reluctant to reign in improper defense conduct for fear of a retrial being barred and “unscrupulous defense counsel [will] be allowed an unfair advantage[.]” Washington, 434 U.S. at 513. Another court may have made a different decision—indeed, we may have made a different decision—but we may not substitute our judgment for the trial court’s. Rather, a trial court’s evaluation of potential juror bias is entitled to “the highest degree of respect[.]” Id. at 511; see Brock v. State, 955 N.E.2d 195, 208 (Ind. 2011) (determining the trial judge did not abuse its discretion in granting a mistrial due to defense misconduct during closing argument although “another trial judge might have employed another method to reduce the effects of defense counsel’s comments”), cert. denied.
Nearly 200 years ago, the United States Supreme Court articulated the standard we still apply to a mistrial granted over the defendant’s objection: courts may grant a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. 579, 580 (1824). Although the defendant’s “right to have his trial completed by a particular tribunal” is valued, in some instances it must “be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949). Here, the trial court painstakingly weighed the circumstances and determined a mistrial was appropriate to preserve the “ends of public justice.” I would affirm this finding.